Returning again to where we started in The Heart of Midlothian (1818), the door of Edinburgh's Tolbooth Prison is a site of concentric acts of criminal violence: the lynching of Edinburgh City Guard Captain James Porteous, whose death sentence for the lawless shooting of six citizens during a riot had been deferred at the intervention of Sir Robert Walpole. (The Jacobite-inflected riot itself resulted from the execution of smuggler Andrew Wilson, who had gained popular sympathy due in part to Scottish dissatisfaction at customs and excise taxes imposed from London.) The Tolbooth is thus a point of access to a historical narrative of the struggle for Scottish legal sovereignty encoded in the operation of the criminal law.

But the Tolbooth also marks the start of Sir Walter Scott's heroine Jeanie Deans's journey to London to seek English sovereign intervention in the operation of specifically Scottish criminal law. Jeanie's sister Effie had been convicted of the murder of her baby, based solely on evidence of the child's disappearance and her earlier failure to report its birth. Jeanie wins the attention of the Scottish Duke of Argyle who, despite tensions with King George II over his countrymen's lawlessness in the Porteous matter, manages to get her an audience with Queen-consort Caroline of Ansbach. The Duke suggests Caroline might intercede to win a royal pardon from her spouse on the basis of the harshness of the evidentiary presumptions permitted under the Scottish infanticide statute (which, even after the Act of Union, was specifically a question of Scottish law). He argues that “[i]t seems contrary to the genius of British law … to take that for granted which is not proved, or to punish with death for a crime, which, for aught the prosecutor has been able to show, may not have been committed at all.” According to this argument, the project of defining criminality has a distinctly national character, and this Scottish law is an aberration from the general pattern of good “British” justice.

This is a strange argument for Scott to put into the mouth of a character in defense of his heroine. Scott was, himself, involved in the Scottish criminal law in his capacity as Sheriff of Selkirkshire, supervising criminal investigations and, when the Court of Session was in recess, acting as a magistrate in the Sheriff Court.